Articles Posted inIndecent Exposure and Aggravated Indecent Exposure

In part 1 of this article, we began our examination of what makes a felony different than a misdemeanor in Michigan. We saw that one key distinction is the maximum possible penalty that can be imposed, and that a misdemeanor can never be punishable by more than 1 year in jail, whereas a felony carries a potential prison sentence of any number of years. We then distinguished jail, where a person can be housed for no more than 1 year, from prison, where a person will usually remain for at least a year and a day. We then began to explore the differences between how a felony and misdemeanor charges are handled, at least at the early stages, in court. We saw how a felony charge is “tested” in the district court at the preliminary examination stage. We’ll pick up there:

At a preliminary exam, the prosecutor will call some witnesses. This usually includes the arresting and/or investigating police officer, a victim, if there was one, and maybe a key eyewitness. Not everyone needs to testify at this phase of the case. Remember, this isn’t a trial, and the prosecutor doesn’t have to prove anything like guilt beyond a reasonable doubt, but merely that there is a debatable question of fact that the defendant committed the charged crime. In that sense, “he-said, she-said” is more than good enough for a case to survive the probable cause test at this stage.

Another way to think about this is that all the prosecutor has to do, really, is show the Judge that the case against someone is not BS. In other words, unless the district Judge would feel comfortable saying something like, “this charge is baloney,” then the case will be allowed to continue to the circuit court. On the other hand, if the Judge can say something like he or she finds no evidence that a crime was committed or a law was broken (this rarely happens), or, that he or she cannot find that there is at least an open question that the person charged with the crime did, in fact do it, then the matter will be dismissed.

As Michigan criminal and DUI lawyers, my team and I deal with both misdemeanor and felony charges every day. Often enough, we’ll be asked by a client to explain the real difference between the 2 kinds of offenses. This happens a lot when the charge my client is facing is one that can be brought as either a felony or a misdemeanor, like DUI’s, embezzlement, indecent exposure offenses, as well as certain drug crimes. In this 2-part article, I will examine and provide an overview of what differentiates a felony from a misdemeanor charge.

The one thing that most people know right out of the gate is that a felony is more serious than a misdemeanor. Few things in the law are absolute, but the idea that facing a misdemeanor is always “better” than facing a felony is one of them. Of course, the flip side is that facing a felony is always “worse,” and usually more expensive.

In Michigan, the biggest difference between a felony and a misdemeanor is the maximum amount of time a person can be incarcerated. By law, a person cannot be locked up longer than 1 year for a misdemeanor. To be sure, a person can be convicted of a felony and not be required to serve any time at all, or, he or she can be sentenced to less than a year in jail, but in no case can a misdemeanor conviction result in a sentence of greater than one year in the county jail.

If you are facing an indecent exposure, or aggravated indecent exposure case, then you already realize that it’s an uncomfortable situation. If you’re looking for information online, you will quickly run into fear-based marketing tactics from lawyers and reactionary comments from the public. In this article, I want to make clear that no matter how awful you “feel” right now, things are almost certainly not as bad as you probably think, and the best thing you can do is stop freaking out, take a few breaths, and slow down enough to learn that you can get past this whole situation rather painlessly, and often with little or no damage to you or your record.

Let’s quickly separate and explain the 2 indecent exposure (IE) charges: For starters, there’s the plain old “indecent exposure,” meaning a person’s genitals were exposed. This is a misdemeanor charge, and it can be brought for any kind exposure of the genitals, whether outright “flashing,” or even if a guy gets caught urinating. Next, there is “aggravated indecent exposure,” where a person was observed fondling his or her genitals. “Fondling” does not necessarily mean (although it can include) actual masturbation. Thus, any rubbing of the genitals is enough. Aggravated indecent exposure is a felony, but a special kind of “light” (meaning lenient) felony, often called a “high court misdemeanor.” To be perfectly clear about it, although the term “high court misdemeanor” may sound better, it is still a felony.

It’s not uncommon for someone facing an IE charge to panic when they hear the word “felony,” but the good news is that here, that reaction is mostly unfounded. Sure, an aggravated indecent exposure charge is in some ways, “worse” than plain old indecent exposure, but that has more to do with procedure and, yes, money. A felony can involve way more court appearances and legal work than a misdemeanor. Even so, at the end of the day, most aggravated indecent exposure cases can be wrapped up rather simply, and without a lot of negative consequences (like jail). There are, however, certain important potential issues that must be addressed in both indecent or aggravated indecent exposure cases to make things go more smoothly. Let’s look at them…

The idea for this article came from my associates after a week where we saw how things go bad the minute someone starts talking to the police without a lawyer. What I want to make clear in this article is the one universal piece of legal advice that holds true in every situation: shut up. If you are being questioned by the police, always exercise your right to remain silent. In fact, of all the rights we have as Americans, none is waived so freely, so frequently, and so much to a person’s detriment, as the right to remain silent. In the real world nobody ever talks themselves out of trouble – it’s just the opposite. If you haven’t talked to the police yet, then don’t. If you already have, then we are simply left with the reality of that.

We’ll begin by restating what is far more overlooked than obvious: you have an absolute right to remain silent. We’ll get into this more later, but the day before this article was written, I met with a client who hired me after he spoke to a police detective and was subsequently arrested and charged with a crime. Because he is a nice guy who has never been in trouble before, my client naively asked the detective if it was a good idea to be talking to him, and if he should get a lawyer first. The detective, for his part, answered the question rather diplomatically, and replied, “I can’t tell you what to do.” Of course, my client now understands that he should not have said a word.

People often feel obligated, or in some way “pressured” to answer questions when asked by the police. Most people are good by nature, and even though they may have broken a law, they don’t want to appear uncooperative, and because of that, they “cooperate” themselves straight into more trouble, only to later realize they should have just kept quiet.

There is a certain amount of embarrassment that just automatically goes along with facing an Indecent Exposure or Aggravated Indecent Exposure charge. Because I handle more Indecent Exposure (IE) cases than just about anyone, at least in the Detroit area (Wayne, Oakland and Macomb County), where I practice, I know this well, having sat across the table from clients facing these charges more times than I can count. Beyond having developed an expertise in handling these cases, I have also honed a special skill in handling the clients who have to deal with these charges through the criminal court system. Some of this is attributable to my background: after earning my undergraduate degree in psychology and then going through law school, I also completed a post-graduate program in addiction studies, a rather specialized area within the broader field of psychology, and one where there is always some psycho-pathology at issue. I understand that an IE case can result from some underlying stress or trouble a person may be experiencing (and about which he may not be consciously aware), but I also know that these incidents can just “happen.” Not everything about a case has be a big deal, and my job is make sure that, to the extent possible, we keep it that way in yours.

An interesting thing happened the week this article was written. In the course of meeting with a new IE client, his explanation for what led to his arrest involved circumstances a bit different from what I usually hear. It wasn’t the uniqueness of his case that struck me, but the fact that, within my office, no one even thought to ask about it. In other words, this poor guy came in, understandably embarrassed, even though he didn’t need to be, and because my staff and I see so many of these cases, neither my senior assistant, my paralegal, nor my associate attorney so much as asked what happened in his case. Once he left, my staff took his information and contacted the court where it is pending and made sure all the paperwork, including the request for the police report, was properly and quickly filed. To everyone on our end, his case was no big deal; in fact, it was just another day at the office.

Feelings of embarrassment are normal, and expected, really, but they are also useful in assessing whether a person is a risk to re-offend. Here, I kind of have to split myself in two and look at this both from the clinician’s point of view, and also from the perspective of a defense lawyer who knows how to best resolve these matters. I’ve read countless clinical assessments in these cases – some completed by court-order, others undertaken at my suggestion to help in a case (and for what it’s worth (and this it’s no great secret that a savvy lawyer would do this) if an assessment done privately comes back and is not helpful to the case, it will never see the light of day), and they can be impressive in their use of scholarly language. At the end of the day, though, the part of the assessment everyone looks to is the prognosis about whether the person is likely to engage in such behavior again, or not. And sometimes, when the Judge believes the person has been embarrassed enough, it can be enough to put any such questions to rest.

Perhaps the single best and most valuable piece of legal advice that can be given to anyone being questioned by the police is to “shut up.” Seriously, don’t say anything. In my role as a criminal,DUI and even driver’s license restorationlawyer, if I could wave a magic wand and get my clients to do just one thing, it would be to keep quiet. In this article, I want to take a quick and simple look at the value of silence, and how the natural urge to speak complicates just about everything. Chances are, if you’re reading this because you’ve been charged with a crime , a drinking and driving offense, or need to get your driver’s license back, and you’ve probably said things along the way that you’d like to take back. Although less frequently a problem in DUI cases, a situation just crossed my desk yesterday (the inspiration for this article, in fact) where someone who should not have said anything probably talked themselves right into a drunk driving charge.

In that case, the person (I will use “he/she” or “they” to avoid even a gender identification) had been in an automobile accident caused by the other driver. This person left the scene, but the other driver got the plate and the police showed up at his/her home. The person was rather drunk when the police came, and when asked about whether he/she had been drinking before driving and at the time of the accident, the person admitted to having done so, and having been drunk at the time. Subsequently, the person tested out with a rather high BAC. Although I cannot say much more, charges will be coming. The problem here is that had this person simply NOT said anything, the police would have been faced with an almost certain inability to prove that he/she was over the limit at the time of the accident, effectively killing the likelihood of a drunk driving conviction.

I see this all the time in criminal cases, as well. Let’s use an indecent exposure case for an example. Imagine the police get a call about a guy exposing himself while driving on Main Street. The caller can’t give a great description of the driver, but does give a license plate number. Running that information, they identify the car as belonging to Fred, and the police contact him. They ask Fred if he was anywhere on or near Main Street at the relevant time, and he answers “yes.” With that answer, Fred has just seriously helped the case against him. Now the police know that Fred was in the area at or around the time the caller said she was flashed. Had Fred just said nothing, the police would probably not be able to prove he was even in the area, much less that he flashed anyone. Fred, like so many people, probably had pangs of guilt and the inner turmoil of just knowing that the police “know” (knew) that he did it, so he thought it would be better to be honest. To be clear, in most cases, the police do “know.” Cops are smart, and most police officers develop a better sense of human nature than anyone in any other profession. A street cop learns to read facial expressions and body language in ways you and I will never comprehend. Still, “knowing” something is one thing, but being able to prove it is quite another.

In my role as a Michigan criminal and DUI lawyer, I often wind up speaking with people whose cases are pending in courts beyond the geographic area where I practice. I have always believed that a lawyer should be relatively “local” to the court where a case is pending, and that’s why I only handle DUI and criminal cases in the Metropolitan Detroit area. In a recent conversation with a caller, the person (whose case was in a distant county) asked me whether she should spend the money for her own lawyer or just go with a court appointed lawyer. I knew that my answer was going to be “hire your own,” but I had to pause for a moment to think about how to say that without sounding “obvious.” This will be a rather short article that addresses the question “Should I spend the money for my own lawyer or just go with court-appointed, instead?”

The way for me to put it came quickly; just tell the truth – the unvarnished truth. Sometimes, we try to be diplomatic when we answer a person’s question. If someone asks how you like his or her new car, and even if you didn’t, and you also thought the color was horrible, you wouldn’t just bluntly say so! Can you imagine responding, “I think it’s kind of ugly, and man, that color looks like puke!” Instead, you’d probably just say something like, “Oh, wow, it’s nice and roomy.” My point, skipping all pretensions of diplomacy, is this: If you can, you should always hire your own lawyer. Let me explain why:

When I get back to my office and one of my staff tells me about a caller who is considering hiring me for a drunk driving or criminal case, but already has a lawyer, my gut reaction is 1 of 2 things: If the caller had hired the lawyer, chances are he or she doesn’t like what they’re hearing, and expected a better outcome; in other words, there’s a good chance that person is just someone else’s unhappy customer. Sometimes, of course, the person can be right and the old lawyer may just not be up to the task, or he or she is getting exactly what they paid for by hiring a “cheap” lawyer, but for the most part, in those situations, the problem is the client’s unmet or unrealistic expectations, rather than any supposed under-performance of the lawyer. I am rarely enthused about or interested in these cases, and most often decline to get involved unless the caller has made an obvious mistake by doing something like hiring the family friend lawyer who isn’t experienced with the kind of case at issue, or employed some kind of bargain, cut-rate lawyer who answers his or her own phone. Court-appointed lawyers, however, are an entirely different matter…Continue reading

In some of my criminal law, DUI and driver’s license restoration articles, I have gone beyond a mere discussion about “the law” and have tried to pull back the curtain a bit, so to speak, in order to help the reader understand the real working role of the lawyer, and not just in the sense in some way that amounts to nothing more than an excuse to say “call me!” If we’re going to be brutally honest, all doctors, dentists, lawyers and even funeral directors are in business. At the end of the day, every professional offers his or her services to make a living. Sure, most of us really want to help people, but you’re not much of a professional at anything if you’re not success driven. For my part, I want to receive a rewarding fee for what I do, and in exchange feel like I’m providing a top-notch service to my client. I want to be the best at what I do. And while this all sounds great, what does it mean, and why should any of this matter to you?

If you are looking for a lawyer for a DUI or driver’s license restoration case, then you already know that the field is crowded, and there is a lot to sort through. The same thing goes for anyone facing a criminal charge and looking for a criminal lawyer. Beyond your own inquiries, you may get recommendations from friends and family. In the strongest way possible, I’d advise against just “jumping” at anyone’s recommendation, even if the lawyer who gets the endorsement is me. You should always check around on your own, read articles, see what kind of information any given lawyer has posted, and then make some phone calls. There simply is NO downside to being a smart consumer and doing your homework.

There’s an old saying to the effect that “information is power.” Actually, it’s not. At best, information is only potential power. Any real power comes from using that information to your advantage. If you go back through my blog articles, for example, especially many of those written earlier, I examine just about every legal situation a person could possibly face. Therefore, when I say “information,” I mean a lot more than meaningless prattle about being “tough” or “aggressive.” Labels, especially those we use for ourselves, fall far short of any kind of useful information. One of first things you should look for in the search for a lawyer is genuine value, and not just in terms of cost, or price. “Value,” in this sense, means importance to your life. What is the value of being able to breathe? That’s not something on which you put a price. What’s the value of winning back or keeping your driver’s license, or keeping a criminal conviction (perhaps for something like possession of marijuana) off of your record? And there’s more…Continue reading

Over the last few years, I have had an increasing number of clients retain me over the phone, before they ever even meet me or come to my office. This article, like the previous, will be another departure from my usual informational installment, because instead of talking about Metro Detroit-area DUI cases or Michigan driver’s license restoration appeals, I will examine things from my side of the desk, and the somewhat new way that I’m being hired. What’s so interesting to me is that I had nothing to do with this. I never “offered” it as an option. Instead, it grew out of this blog, more than anything else, and is really a thing of its own creation.

My website and this blog contain a lot of genuinely useful information about DUI, driver’s license restoration and criminal cases. In the criminal setting, I have a rather eclectic concentration in DUI (drunk driving), DWLS/DWLR, embezzlement and indecent exposure cases. I publish 2 articles every week, and I examine my subjects in careful detail. I write about things like the stress a person arrested for a drunk driving goes through, the experience of getting sober, and how that’s a necessary requirement to win back your driver’s license, and how embezzlement cases and indecent exposure cases work in the real world. I don’t write to impress other lawyers; my goal is to speak through the written word with the same conversational voice I have if I’m sitting across a table from someone. Apparently (and I’d be lying if I didn’t admit to being rather proud of it), a lot of people identify with this.

So much so, in fact, that some years ago, it became clear that my “voice” was reaching people in a way that when they’d call my office, they were more than content to book appointments without ever talking to me first. That was certainly different, at least back then, because lawyers essentially thrive with the understanding that the way to get clients is to bring them in for the free consultation and have them “sign up.” In other words, the object of getting a new caller on the phone is to get him or her to agree to come in and “discuss” the matter further. That was never the way I operated, anyway, because I always preferred to do all my consultation stuff over the phone. I’ve been fortunate enough throughout my career to be too busy to have time to bring people in just to “kick the tires.” If you’re looking to hire a lawyer, we’ll answer your questions right when you call; there will be none of this “come on in so we can talk about it” stuff…Continue reading

Consider this: A somewhat niche and unique aspect of my practice concentrates in indecent exposure cases. Almost every exposure case that I handle has taken place in a car. And while I’ve had a few “drunk boating” cases in my career, with but a few exceptions, every DUI case that has ever come into my office originated in a 4-wheeled vehicle. In today’s world, everyone has a cellphone. The police can, and often do get a real time report of illegal activity (from a drunk driver to a driver exposing himself) from a cell phone tip. I’ve had countless cases where a tipster has remained on the phone so the police could locate a drunk driver as the caller followed him or her. “Suspicious activity” calls normally get a pretty quick police response, as well, especially in the suburbs. When you’re 19, you might wonder why anyone would be concerned about your car driving around the same neighborhood at 1 in the morning; when you’re a homeowner, you wonder what that car is up to, and when you’re the police officer who stops the car and finds a bunch of kids with alcohol and/or marijuana, you wonder how they could be so clueless.

Of course, there are legal issues involved in the pulling over of motor vehicles, but the real world truth is that very few cases ever get tossed out of Metro-Detroit courts for an illegal traffic stop. Here is the big question I get asked all the time: “Don’t the police need probable cause to pull me over?” The answer, and it may surprise you, is “No.” The police merely need a “reasonable suspicion” to pull someone over. Once you’re pulled over, they’ll need probable cause to arrest you for something, but that’s a whole different matter. The point here is that the law does not require an officer have “probable cause” to pull over a vehicle. Everything that happens thereafter, however, flows from that stop…Continue reading